Citation Nr: 0407717
Decision Date: 03/24/04 Archive Date: 04/01/04
DOCKET NO. 02-08 515 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to an initial evaluation in excess of 30
percent for post-traumatic stress disorder.
2. Entitlement to an initial evaluation in excess of 20
percent for diabetes mellitus, Type II.
REPRESENTATION
Appellant represented by: Mississippi State Veterans
Affairs Board
ATTORNEY FOR THE BOARD
James R. Siegel, Counsel
INTRODUCTION
The veteran served on active duty from August 1969 to August
1971.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a September 2001 rating decision of the
Regional Office (RO) that granted service connection for PTSD
and for diabetes mellitus, Type II, evaluated as 30 percent
disabling and 20 percent disabling, respectively. The
veteran disagreed with the ratings assigned for each of these
disabilities. This case was previously before the Board in
June 2003, at which time it was remanded. As the requested
development has been accomplished, the case is again before
the Board for final appellate consideration.
The issue of entitlement to an initial evaluation in excess
of 20 percent for diabetes mellitus, Type II, is REMANDED to
the RO via the Appeals Management Center in Washington, D.C.
The Department of Veterans Affairs (VA) will notify you if
further action is required on your part.
In statements on clinical evaluation, the veteran appears to
raise the issue of entitlement to a total rating for
compensation purposes based on individual unemployability.
Such issue is not inextricably intertwined with the issue on
appeal, and is referred to the RO for appropriate action.
FINDING OF FACT
The veteran's PTSD is manifested by anxiety and nightmares,
and is mild in severity.
CONCLUSION OF LAW
An initial evaluation in excess of 30 percent for PTSD is not
warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
§ 4.130, Diagnostic Code 9411 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§
5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)). This
new law eliminates the concept of a well-grounded claim, and
redefines the obligations of the VA with respect to the
duties to notify and to assist claimants in the development
of their claims. First, the VA has a duty to notify the
appellant and his representative, if represented, of any
information and evidence needed to substantiate and complete
a claim. VCAA, § 3(a), 114 Stat. 2096, 2096-97 (2000). See
38 U.S.C.A. §§ 5102 and 5103 (West. 2002). In this regard,
VA will inform the veteran of which information and evidence,
if any, that he is to provide and which information and
evidence, if any, VA will attempt to obtain on his behalf.
VA will also request that the veteran provide any evidence in
his possession that pertains to the claim. Second, the VA
has a duty to assist the appellant in obtaining evidence
necessary to substantiate the claim. VCAA, § 3(a), 114 Stat.
2096, 2097-98 (2000). See 38 U.S.C.A. § 5103A.
The Board notes that the issues on appeal were first raised
in a notice of disagreement submitted in response to the VA's
notice of its decision on claims for service connection.
Under 38 U.S.C. § 5103(a), the VA, upon receipt of a complete
or substantially complete application, must notify the
claimant of the information and evidence necessary to
substantiate the claim for benefits. However, in this case
the issue on appeal did not stem from an application for
benefits, it stemmed from a notice of disagreement as to the
disability evaluations assigned by a VA rating decision.
Under 38 U.S.C. § 7105(d), upon receipt of a notice of
disagreement in response to a decision on a claim, the
"agency of original jurisdiction" must take development or
review action it deems proper under applicable regulations
and issue a statement of the case if the action does not
resolve the disagreement either by grant of the benefits
sought or withdrawal of the notice of disagreement. If, in
response to notice of its decision on a claim for which VA
has already given the section 5103(a) notice, VA receives a
notice of disagreement that raises a new issue,
section 7105(d) requires VA to take proper action and issue a
statement of the case if the disagreement is not resolved,
but section 5103(a) does not require VA to provide notice of
the information and evidence necessary to substantiate the
newly raised issue. See VAOPGCPREC 8-03.
The Board notes that the September 2001 rating decision, the
statement of the case (SOC), and letters sent to the veteran,
informed him of the information and evidence needed to
substantiate his increased rating claims. The SOC informed
the veteran of the criteria for evaluating the disabilities
at issue. In light of the above, further development in this
regard would serve no useful purpose. See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6
Vet. App. 426, 430 (1994) (remands which would only result in
unnecessarily imposing additional burdens on the VA with no
benefit flowing to the veteran are to be avoided). The VA
has satisfied its obligation to notify.
With regard to the duty to assist, the record contains the
veteran's service medical records, as well as reports of post
service VA medical treatment. The veteran has been afforded
the opportunity for a personal hearing on appeal. The Board
has carefully reviewed the veteran's statements and concludes
that he has not identified any additional pertinent evidence
not already of record. The Board has also perused the
medical records for references to additional treatment
reports not of record, but has found nothing to suggest that
there is any outstanding evidence with respect to the
veteran's claims. Based on the foregoing, the Board finds
that all relevant facts have been properly and sufficiently
developed in this appeal and no further development is
required to comply with the duty to assist the veteran in
developing the facts pertinent to his claims. Essentially,
all available evidence that could substantiate the claim has
been obtained. There is no indication in the file that there
are additional relevant records that have not yet been
obtained. Accordingly, the Board will adjudicate this claim
based on the current evidence of record.
Factual background
The veteran's discharge certificate shows that he served in
Vietnam, that his military occupational specialty was light
weapons infantryman and that among the medals he received was
the Combat Infantryman Badge. Service connection has been
established for PTSD, effective from July 5, 2000.
A VA psychology consultation in July 2000 shows that the
veteran complained of chronic anger outbursts, combat related
nightmares, trouble with relationships and social isolation
and difficulty sustaining employment. He denied that he had
ever been treated previously for a psychiatric disability.
He elaborated on his current symptoms as including frequent
intrusive thoughts of combat experiences, avoidance of
crowded public places, "down" mood with occasional crying
spells, anhedonia, emotional blunting, irritability,
hypervigilance, exaggerated startle response, and impaired
concentration and memory.
On mental status evaluation, the veteran was alert and
oriented times three. His mood was mildly anxious with
appropriate affect. His affect became noticeably blunted
when discussing traumatic details of Vietnam. The veteran
displayed some mild nervous psychomotor agitation. Speech
was regular in rate and rhythm, except when discussing
trauma. He was coherent, goal oriented and displayed no
signs of thought disorder or psychosis. He denied suicidal
or homicidal ideation. His judgment was intact and his
insight limited. He did not appear to have a good
understanding of the relation of his apparent symptoms. He
appeared to be in denial over the extent of his drinking.
The examiner concluded that the veteran met the criteria for
PTSD.
A VA social survey was conducted in June 2001. It was noted
that the veteran was constantly frightened by his consistent
and recurring nightmares of his war experiences.
A VA psychiatric examination was conducted in June 2001. The
examiner noted that the claims folder was not available for
review, but the VA Medical Center electronic file was
reviewed. The veteran related that he had never been able to
hold a job, and that he had been in constant trouble with
supervisors. He described a long history of nightmares, and
problems with relationships. He also reported intrusive
thoughts. He stated that he was quite moody and that he had
crying spells when alone, three to four times a week. He
indicated that he had occasional suicidal thoughts, but had
made no attempts. He also noted that his sleep and appetite
were poor. He maintained that he had intrusive thoughts on a
daily basis. They were reportedly precipitated by loud
noises or there might be self-initiated. He denied
flashbacks. He also claimed he had a very strong startle
reaction. He denied having any close friends, and that his
activities included being alone and watching television.
On examination, the veteran was oriented to time, place,
person and was cognizant for the reason for the interview.
He was logical, coherent and not tangential or
circumstantial. His voice was well modulated. He was
responsive, but not spontaneous. The veteran showed definite
increase in tension when talking about Vietnam and a slight
blocking of speech at the same time. Otherwise, no blocking
of speech was noted, or dysphasia. He made good eye contact.
He appeared pleasant and cooperative. His affect was normal
and he laughed easily. There was no tearing when talking
about Vietnam. No hallucinations, delusions or psychosis was
present. No major depression was present. Some anxiety was
noted. The veteran had a fine, purposeful tremor. There was
no abnormal startle reaction to ambient noise. The veteran
appeared to be of low average intelligence. Abstraction
ability was poor. Judgment was normal. Attention and
concentration, and recent and remote memory were intact, and
the veteran was able to follow simple directions. The Axis I
diagnoses were PTSD and alcohol dependency. The Global
Assessment of Functioning score was 55, and the examiner
stated that if only PTSD were considered, it would be 65. He
also noted that the effects of PTSD seemed to be relatively
mild at the time of the examination.
Analysis
Under the applicable criteria, disability evaluations are
determined by the application of a schedule of ratings, which
is based on average impairment of earning capacity.
38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic
codes identify the various disabilities. The VA has a duty to
acknowledge and consider all regulations which are potentially
applicable through the assertions and issues raised in the
record, and to explain the reasons and bases for its
conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although
the regulations do not give past medical reports precedence
over current findings, the Board is to consider the veteran's
medical history in determining the applicability of a higher
rating for the entire period in which the appeal has been
pending. Id; Powell v. West, 13 Vet. App. 31, 35 (1999).
As the veteran takes issue with the initial rating assigned
when service connection was granted for PTSD, the Board must
evaluate the relevant evidence since the effective date of
the award; it may assign separate ratings for separate
periods of time based on facts found - a practice known as
"staged" ratings. Fenderson v. West, 12 Vet. App. 119
(1999).
General Rating Formula for Psychoneurotic Disorders:
Occupational and social impairment with reduced
reliability 50%
and productivity due to such symptoms as: flattened
affect;
circumstantial, circumlocutory, or stereotyped speech;
panic
attacks more than once a week; difficulty in
understanding
complex commands; impairment of short- and long-term
memory (e.g. retention of only highly learned material,
forgetting to complete tasks); impaired judgment;
impaired
abstract thinking; disturbances of motivation and mood;
difficulty in establishing effective work and social
relationships.
Occupational and social impairment with occasional
30%
decrease in work efficiency and intermittent periods of
inability to perform occupational tasks (although
generally
functioning satisfactorily, with routine behavior,
self-care,
and conversation normal), due to such symptoms as:
depressed mood, anxiety, suspiciousness, panic attacks
(weekly or less often), chronic sleep impairment, mild
memory loss (such as forgetting names, directions,
recent events).
38 C.F.R. § 4.130, Diagnostic Code 9411.
The Board acknowledges that the VA psychiatric examination
conducted in June 2001 demonstrated that the veteran's
symptoms include anxiety and nightmares, there was no
indication of any impairment in his memory or judgment. He
did not mention any panic attacks. He was not depressed.
The symptoms required for a higher rating have not been
documented by the evidence of record. The Board points out
that his speech was logical and coherent, and he was fully
oriented. The evidence in support of the veteran's claim for
an increased rating for PTSD consists exclusively of the
veteran's allegations regarding the severity of his
psychiatric disability. In contrast, the medical findings on
examination establish that PTSD is not more than mild in
severity. The Board concludes, therefore, that the
preponderance of the evidence is against the claim for an
increased rating for PTSD.
ORDER
An initial rating in excess of 30 percent for PTSD is denied.
REMAND
The veteran also asserts that a higher rating should be
assigned for diabetes mellitus. A review of the record
discloses that the veteran has not been afforded an
examination by the VA to evaluate the severity of diabetes.
The Court has held that where the veteran claims that a
disability is worse than when originally rated, and the
available evidence is too old to adequately evaluate the
current state of the condition, the VA must provide a new
examination. Olsen v. Principi, 3 Vet. App. 480, 482 (1992),
citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).
Under 38 C.F.R. § 3.326(a) (2003), a VA examination will be
authorized where there is a possibility of a valid claim.
Under the circumstances of this case, the Board finds that
additional development of the record is required.
Accordingly, the case is REMANDED to the RO for action as
follows:
1. The RO should contact the veteran and
request that he furnish the names,
addresses, and dates of treatment of all
medical providers from whom he has
received treatment for diabetes mellitus
since 1999. After securing the necessary
authorizations for release of this
information, the RO should seek to obtain
copies of all treatment records referred
to by the veteran, and which have not
already been associated with the claims
folder.
2. The veteran should then be afforded a
VA examination by a specialist in
endocrinology, if available, to determine
the nature and extent of his diabetes
mellitus. All symptoms associated with
diabetes should be specified. All
necessary tests should be performed. The
claims folder should be made available to
the examiner in conjunction with the
examination.
Following completion of the above, the RO should review the
evidence and determine whether the veteran's claim may be
granted. If not, he and his representative should be
furnished an appropriate supplemental statement of the case
and be provided an opportunity to respond. The case should
then be returned to the Board for further appellate
consideration.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
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